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Caskey v, aredtey, 773 .w.2d 735
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Lexis Acivar eee | L_773 S.w.26735 Reporter [773 S.W.2d 735 [Tseng patero™ pes pump]
Recent & Favorites Cases Texas Civil Proceaure Shean f
oe aie - ~ —
‘About this Document
& Caskey v. Bradley, 773 S.W.2d 735 Topic Summaries
(Copy citation) View reports (2)
Court of Appeals of Texas, Second District, Fort Worth
June 21, 1989 Legal Issue Trail
No. 2-88-093-CV What's this?
Reporter: 773 S.W.2d 735 | 1989 Tex, App. LEXIS 2108
DENNIS CASKEY, APPELLANT v. JAMES BRADLEY, APPELLEE -
Subsequent fistory: July 24, 1989, Ordered Published,
Prior History: From thesan District Court of Tarrant County, Hon.
George Crowley, Judge.
Core Terms
1, common-law, no evidence, pedestrian, driver, negligence per se, ordina
vital fact, intersection, precautions, future medical expenses, Glass of persons,ry incapa
roadway, ref'd, special issue, crosswalk, horn
care, trial court,
citated,
Case Summary
Procedural Posture
Appellant driver and appellee, a blind pedestrian, Sought review of a judgment
Disirict Court of Tacrant County (Texas), which found that the parties were equally from the 67th
‘an accident and which awarded appelice damages for personal injuries. Appellant negligent in
that the evidence was insufficient to sup} port the verdict and that the fury charges contended
improper. Appellee contended that he w: /as wrongfully denied additional damages were
.
Overview
Appellee blind pedestrian sued a} Ppeliant driver for injuries arising from
appellant's vehicle struck ay ppeilee as he was wall lking with his guide dog. anTheaccident in which
Party equally negligent and awarded damages t ‘0 appellee. Appellant contendedjurythatfound each
charges were flawed and that the evic lence was insufficient to support the the jury
contended that the trial court ef rred in denying him compen: sation for futureverdict. Appellee
medical expenses
and the death of his guide dog. The
dog but otherwise affirmed. Submissicourt reformed the jude igment to award compensation for the
on to the jury of speci ‘al issues Concerning negligence per
se under Tex. Hum. Re Ann, 324. and Tex. Ry Civ. 67016,
72, was lawful because appellee was within the class intended to be protected by those laws,
and the laws created a higher duty af care tl han that of ordinary care. Appellant
established the sufficiency of the evidence. There was No evidence supporting 's own testimony
appellee's naed
for future medical care. Nevertheless, appellee was entitled to recov
his dog, and appellee's testimony established his ownership of the d log. ‘er for the wrongful killing of
Outcome
‘The court reformed the judgment to allow ay ppellee blind pedestrian damage
his dog but otherwise affirmed the judgment t awarding damages to appellee s for the killing of
on his claims for
personal injuries arising from an a iccident with appellant driver. The court conchided
Charges concerning negligence per F se were proper, the evidence was sufficient, and appellee that jury
was entitled to damages for his dog based on evider nce that he owned
the dog.
LexisNexis® Headnotes
~Hide
Tarts > > Broa> ons > General Overview
HN2E An unexcused viol: lation of @ statute or ordinance constitutes negligence as
a matter of
Jaw If such statute or ordi linanc \ce was designed to prevent injury to the class of persons
the injured party belongs. - 1m by tn to which
nc
‘Transportation Law > Private vehicles > Traffic Requlation > neral Overvis
HINZE
See Tex. Hi Code Ann, b ‘Shepardize - Narrow by this Headnotg
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(———Tmaspaation
tau 2 pas
q -« failure Tearaperpnion Law bth “epvabiee2 PABDEIBBeRvlation CZanssg Shuai uper...
] Crooks v. M1ae Rea... «C Corter oe] Tem & condsnas
01 EF cospaneasersuent B23160¥.24735tat, Ann. art 67010, 6 79, Shepardize- Narrow by this Neanote 1 Shepardize® | Tools ‘About this Document
THES > Bears Repores [773 Sad 735 NT: [pegs] [ume v]
Torts > > Brant > Violations
of Law > Standards
of Care
Tors > > Proof >
Torts > > Standards of Care > Reasonable Care > General Overview
HN&E When a statute merely restates the com: imon-law
Necessary to submit an issue on whether the sI tatute was ordinary care standard, it is not
violated if an Issue of common-law
Negligence was submitted, Ne by 94
Civil Procedure > > Tools > Jury
Jastru Generalons
Civil Procedure > ... > Jury Trials > Jury Instructions >sti Overview
> Standard Instructions
Torts > Negligence> i
Torts > > Glomenss>
Torts > > Prog! > Evidence Causation
> Pr
> General Overview
af
Torts > > Beoof > Violations ef Law > General
Overwew
Torts > o> Standards
of Care > > General Overview
HNBE The current Tex. R, Civ. P, 277 mandates that, whenever feasible,
the jury upon broad-form questions a case be submitted to
. Under
common-law negligence and negligence per special iss ue submission, when claims of both
se are raised, different special issues can be used
for each. Under the broad-form submission method
court finds that the method of submitting an instructithis o1p: resents a more difficult situation. The
negligence per se immediately prior
to the general question on negligence and proximate onca use
cases with mixed common-law negligence and negligen Ice peronseto issues.be an appropriate one for
that this Is the only correct method, merely that itis a correct method of The court does not hold
jury charge. Sneperdize
Narrow by this Headnote
Torts >. > Broof> Violations of Law >
Torts
>. > > Soscral Care > Goneral
Qvarnew
HNGE 5. An b) clearly states @ standard different than that of
ordinary care. The driver is to take necessary Precautions for persons
or carrying a white cane to avoid injuring ther mM at Or near a Crosswalk guided
or
by a support dog
Creates a special duty to a specific cla: SS Of parsons at a specific place. As intersecti on. This
such, the Court of
Appeals of Texas , Second District, believe that this statute creates 8 duty of care other than the
common-law ordinary care rule. fi
Torts > > Proot > violations of Law > Genra! Overview
Tors > > Stancards of Care > Soecial Care >
ANZ® Tex. nn. art, 67
tare standard. Specifically, it requires the driver to Creates @ cuty of care other than the ordinary
do something (sound the horn) and to pay
extra attention to a certain class of People (obviously confused or incapacita ted
persons). ‘Shaparclze
- Narrow by tis Hepsnote
(Civil Procedure > Appeals > Standards of Review > General Overnew
HNBE In determining a no evidence paint, the courts are to consider only the evidence
inferences which tend to support the finding ig of the jury and disregard all evidence and and
inferences to the contrary. If there is any evidence of probat tive force to support the finding of
the jury, the point must be overruted and the finding uphet a = Narrow,
Evidence > admussipuity > Procedural Matters > Rulings on Evidence
HNBE A “no evidence" Point of error must and may only be sustained when the record discloses
‘ne of the following: (2: .) a complete absence of evidence of a vital fact; (2) the court is barred
by rutes of law or evidence from giving weight to the only evidence offer red to prove a vital fact;
(3) the evidence offered to prove a vital fact is no
the evidence establishes conclusively the opposite mare than a mere sci intilla of evidence; ar (4)
of a vital fact. ‘Shepargize
Meadnote - Naerow by this
Evidence > Admissibiity > Procedural Matters > Rulings on Evidence
HNLO® An assertion that the evident ce is insufficient to support a finding of fact can mean that
the evidence suy the finding is so weak ar the e
overwhelming that the finding should be set aside and a ewncetrialto the contrary is so
ordered. The courts are
Fequired to consider alll of the evidence in the case in maki ing this determination. Shepardize-
Narrow
by this Heagnote
Torts > Remedi > Ramaneses > Gen Wwervi
HNLAZ Texas adheres to the reasonable probability rule for future damages for personal
injuries. Further, it is true that precise evidence is not t required and that the matter
one for the jury to determine. in - Is primarily
jn
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ig
_~ BRX2SC7 dog 1s personal property WHOSE ownership
Te 1p w TeCogNCE UNE RRETW-ng FT OMNES soc] fim]
dog may recover forit its wrongful injury or kil
Counsel: Jeart Walker, Fort Worth, Texas, Attomey for Appellant,
Wells, Williford & Felber, Revis.Purcell, Fort Worth, Texas, Attorneys for
Appellee.
Judges: Weaver, C.J., Spurlork JI and Keltner,
29.
Opinion by: WEAVER
Opinion
[736] This ts a tort cause of a ction, Appellee, James Bradley,
injuries sustained in a traffic a ccident in Tarrant County, Texas, sued appetiant, Dennis Caskey, for
found each of the parties equally negi igant and awarded Brad ley on October 1, 2983, The jury
36,007.32 in prejudgment interest. Caskey appeats, alleging defects $ 72,800 damages plus $
in the charge and the
Sufficiency of the evidence to support the judgment, By cross-points Bradley
‘erred in denying him compensation for future medi | expenses and alleges the trial court
dog, Ozzie, the death of his seeing eye
‘We reform the judgment as to compensation for the d fog and remand
Prejudgment interest but otherwise affirm. for a computation [737] of
On October 1, 1983, James Bradley was walkin 19 along U.S. Highway 80
Conflicting testimony described him as elther walking along the shoulder in Tarrant County, Texas.
of the road or in
middle of the road. Bradley is blind and was ai
intersection was located near the scen e Of the :ccompan ied by his seeing eye dog, Ozzie. an the
accident. Caskey
westbound direction when he hit Bradi: ley (at approximately 11:00wasp.m.),
operating a motor vehicle in a
Bradley and killing Ozzie, Evidence wa: 's introduced at trial that showed causing serious injury to
‘on the night of the accident. A jury for und both parties 50% negligent Br radley had been drinking
accident. for proximately causing the
In points of error one, two, four, and five, Caskey complains that certain
constituted an invalid and erroneous dire Instructions in the charge
submitted the following in the definitions ctandcomment on the evidence by the trial court. The court
instructions section of the charge:
‘The law states whenever a Pedestrian is crossing or attempting to cross a public
street or highway, at or near an intersection or crosswalk, guided by a dog, the driver
proaching the intersec
as may be necessary to avoid injurin \g Or tion
of every vehicle apr or crossw: atk shalt take such precautions
endangering such pedestrian, and if injury or
danger can be avoided only by bring} ing his vehicle to a full stop,
vehicle to a full stop. A failurtoe cor mply with this taw is negligencehe inshalt bring his
itself.
The law states that every driver of a vehicle shall exercise
with any pedestrian upon any roadway and shall give warni due care to avoid colliding
when necessary and shall exercise proper precautions upot iningobserving
by sounding the hara’
obviously confused or incapacital ited persons upon a roadway. A failure any child or any
to comply with
this law is negiigence in itself.
Caskey maintains that such instructions we ‘ere superfluous and an erroneo
the weight of the evidence, Further, Caske ‘ey claims the charge deviates from us direct comment on
in Texas Pattern Jury Charges. We di: isagree, the sample contained
HNI% An unexcused violation ‘of a statute or ordinance constitut
ifsuch statute or o es negligence as a matter of law
ince was designed to prevent Injury to the Class of persons to which the
injured party belongs v. fr.
the present case, both instructions were based on state statutes. The first4 instructio - In
on TEX. HUM.Rt NN. sec. 421,007 (Wernan Supp. 1989) (old TEX. REV.n was ba: sed
eae? 1977). Violations of bothcondstatutes was based on
(Vernon 1977)). The sex
een V. CIV, STAT. ANI
were pleaded by Bradley,
HINNZ® Section 121.007 of the Human Resources Code reads in part:
{b} The driver of a vehicle a PProaching an intersection or crosswalk where a
pedestrian guided by a sup, port dor 9 OF
to cross shall take necessary preca jutlonsCarrying a white cane is crossing or attempting
to avoid injuring ar endangering the
pedestrian. The driver shall brin 19 the vehicle to a full stop if injury or danger can be
avoided only by that action.
7b). It is undig puted that Brak dley ts blind and was guided
rote: Bradiey in the class of pe ersons intended to bs
the statute. Thus, a violation of Section 121.007(b) would be negligence as a matter
of law,
HN3E Section 79 of article 6701d reads:
Sec. 79, Notwithstanding other pro
‘exercise due care to avoid colicin, ig visions of this Articte every
with any pedestrian upan anydriverroadway
of a vehicle shall
give warning by sounding the hom when necessar and shall
y
Precaution upon observing an: 'y child or any obviouslyandconfuseshall exercise proper
person upon a roadway. d or incapacitated
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on the shoulder of the road. Other witnesses testified t hat they saw Bradley in a lane walking
aa Cegt WHC Rad?
GbtsOhl cthee also testified that he mar naged ta avoid hitting Mr, Bradley by Shepardize® Tools About this Document,
‘swerving and applying his brakes. Based on this testimony 'y We believe that,
evidence that both parties were negligent. Bradley's own testimon) SSNAidaice pon). ase] Giumpw. vd
We Tind that testimony, and the rest of the evidence presented, suficient €0 ‘SUppOFT a jury Finding
of equal negligence of both parties. Caskey's sixth and seventh points of err ror are, therefore,
overtuled.
By way of cross-points, Bradley claims that the tri judge erred in failing to award him future
medical expenses and compensation for the loss of the dog, The trial court found
No evidence to support the jury's finding of $ 2,500 for future medical expenses andthat$ there was
2,500 for
the value of the dog, Ozzie. We uphold the trial court's judgment as to the future medical
expenses but reverse as to the value of the dog.
Bradley correctly asserts that HNL® Texas adheres to the “reasonable probability" rule for future
herr v.
1981, writ red n.r.e.). Further, it is true that precise evidence is not required(Tex.App. -- Amaritio
damages for personal injuries, See
isprimarily one for the @ jury to determine. [740] Id.; Giadewater Municios! Hosp. and that the matter
v. Daniel, 694
(Tex.App. -- Texarkana 1985, no writ).
Gladewater Muri ucipa! Hosp. cases there were testimonies However, in both the Hughett and
from doctors of dollar figures far future
medical expenses. In the present case there is no such testimony.
Bradley should see him in the future if necessary. Bradley had not The doctor testified that
seen the doctor for a period of
‘over two years before the trial, Bradley testi ified that he had aches in his legs and that he believed
the pain to be getting worse, but that he had not seen the doctor because the doctor told him that
the pain would be like this from now on. Nowhere was there any evidence that any sort of medical
care would be required in the future. Based on this evidence we believe the trial court was correct
in denying the Future medical expenses on no evidence grounds.
However, we find the trial court erred In denying recovery for the dag. HNI2% Ad 0g Ispersonal
Property whose ownership is recognized under the law. Arrin v. Arrington,
568 (Tex.Civ.App. -- Fort Worth 1981, no writ), An owner of @ dog may recover for its wrongful
injury or killing. City of Gariand v. White, 368 5.W.2d 12, 16 (Tex.Civ.App.
reFd n.r.e.). Caskey maintains that there was no evidence that Bradley owne: d Eastland 1963, writ
the dog, and thus
could not recover for its injury. We disagree.
Bradley testified that the dog was a gift from Guide Dogs for the Blind. He further testified that the
dog was his to use until the do 1g died or had to be destroyed. We are aware of no title requirement
under Texas taw for ownership of dogs. Bradley stated he had
accident. We believe this provides some evidence that Bradley the dog for ten months prior to the
owned the dog and thus was
entitled to recover for it. We sustain Bradley's second cross-point.
Therefore, we modify the judgment to include an additional $ 1,250 for
2,500 vaiue of the dog as determined by the jury). We remand this causeBradley (one-half of the $
to the trial court far
‘computation of prejudgment interest on the additional $ 1,250 in damages awarded to Bradley.
writ of enor), TEX REV CV STAT ate art, 5069-1.05 ‘ver 10n2X. Supp. (per curiam) {opinion on
1989), Otherwise, we
affirm the decision of the trial court.
_
GB" Leisexis® | snout vexstons | pvacy Poiey | Terms & Condhions | Copyigne € 2038 Lexishens.
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11/13/2013 02:17:02 PM 713-755-1451 Page 1/5 EXHIBIT “A” i WA 3/2013 02:17: 02TwPMn) 713-755-1451 Page 2/5 11 OWL LD, , Page 1 of5 fe eaiare to notty. '4)| > Davis v. able Bod.. 1[C respondeat super. a8. Out Feedback meHS, Cortez se} OZ f ~ Crooks v. M4 Rea. Temis & Condaiont Caskey v, aredtey, 773 .w.2d 735 Search All| Browse ToxingsaRemwar/Sdustes About th's Document Lexis Acivar eee | L_773 S.w.26735 Reporter [773 S.W.2d 735 [Tseng patero™ pes pump] Recent & Favorites Cases Texas Civil Proceaure Shean f oe aie - ~ — ‘About this Document & Caskey v. Bradley, 773 S.W.2d 735 Topic Summaries (Copy citation) View reports (2) Court of Appeals of Texas, Second District, Fort Worth June 21, 1989 Legal Issue Trail No. 2-88-093-CV What's this? Reporter: 773 S.W.2d 735 | 1989 Tex, App. LEXIS 2108 DENNIS CASKEY, APPELLANT v. JAMES BRADLEY, APPELLEE - Subsequent fistory: July 24, 1989, Ordered Published, Prior History: From thesan District Court of Tarrant County, Hon. George Crowley, Judge. Core Terms 1, common-law, no evidence, pedestrian, driver, negligence per se, ordina vital fact, intersection, precautions, future medical expenses, Glass of persons,ry incapa roadway, ref'd, special issue, crosswalk, horn care, trial court, citated, Case Summary Procedural Posture Appellant driver and appellee, a blind pedestrian, Sought review of a judgment Disirict Court of Tacrant County (Texas), which found that the parties were equally from the 67th ‘an accident and which awarded appelice damages for personal injuries. Appellant negligent in that the evidence was insufficient to sup} port the verdict and that the fury charges contended improper. Appellee contended that he w: /as wrongfully denied additional damages were . Overview Appellee blind pedestrian sued a} Ppeliant driver for injuries arising from appellant's vehicle struck ay ppeilee as he was wall lking with his guide dog. anTheaccident in which Party equally negligent and awarded damages t ‘0 appellee. Appellant contendedjurythatfound each charges were flawed and that the evic lence was insufficient to support the the jury contended that the trial court ef rred in denying him compen: sation for futureverdict. Appellee medical expenses and the death of his guide dog. The dog but otherwise affirmed. Submissicourt reformed the jude igment to award compensation for the on to the jury of speci ‘al issues Concerning negligence per se under Tex. Hum. Re Ann, 324. and Tex. Ry Civ. 67016, 72, was lawful because appellee was within the class intended to be protected by those laws, and the laws created a higher duty af care tl han that of ordinary care. Appellant established the sufficiency of the evidence. There was No evidence supporting 's own testimony appellee's naed for future medical care. Nevertheless, appellee was entitled to recov his dog, and appellee's testimony established his ownership of the d log. ‘er for the wrongful killing of Outcome ‘The court reformed the judgment to allow ay ppellee blind pedestrian damage his dog but otherwise affirmed the judgment t awarding damages to appellee s for the killing of on his claims for personal injuries arising from an a iccident with appellant driver. The court conchided Charges concerning negligence per F se were proper, the evidence was sufficient, and appellee that jury was entitled to damages for his dog based on evider nce that he owned the dog. LexisNexis® Headnotes ~Hide Tarts > > Broa> ons > General Overview HN2E An unexcused viol: lation of @ statute or ordinance constitutes negligence as a matter of Jaw If such statute or ordi linanc \ce was designed to prevent injury to the class of persons the injured party belongs. - 1m by tn to which nc ‘Transportation Law > Private vehicles > Traffic Requlation > neral Overvis HINZE See Tex. Hi Code Ann, b ‘Shepardize - Narrow by this Headnotg https://advance. lexis.com/GoToContent View requestid= 60948f6e-e3 05-5c21-743e-c24e.. 11/12/2013 11/13/2013 02:17:02 PM 713-755-1451 Page 3/5 YY. DLAUIGY, 1/2 D. 20 15 Page 2 of5 ‘ (———Tmaspaation tau 2 pas q -« failure Tearaperpnion Law bth “epvabiee2 PABDEIBBeRvlation CZanssg Shuai uper... ] Crooks v. M1ae Rea... «C Corter oe] Tem & condsnas 01 EF cospaneasersuent B23160¥.24735tat, Ann. art 67010, 6 79, Shepardize- Narrow by this Neanote 1 Shepardize® | Tools ‘About this Document THES > Bears Repores [773 Sad 735 NT: [pegs] [ume v] Torts > > Brant > Violations of Law > Standards of Care Tors > > Proof > Torts > > Standards of Care > Reasonable Care > General Overview HN&E When a statute merely restates the com: imon-law Necessary to submit an issue on whether the sI tatute was ordinary care standard, it is not violated if an Issue of common-law Negligence was submitted, Ne by 94 Civil Procedure > > Tools > Jury Jastru Generalons Civil Procedure > ... > Jury Trials > Jury Instructions >sti Overview > Standard Instructions Torts > Negligence> i Torts > > Glomenss> Torts > > Prog! > Evidence Causation > Pr > General Overview af Torts > > Beoof > Violations ef Law > General Overwew Torts > o> Standards of Care > > General Overview HNBE The current Tex. R, Civ. P, 277 mandates that, whenever feasible, the jury upon broad-form questions a case be submitted to . Under common-law negligence and negligence per special iss ue submission, when claims of both se are raised, different special issues can be used for each. Under the broad-form submission method court finds that the method of submitting an instructithis o1p: resents a more difficult situation. The negligence per se immediately prior to the general question on negligence and proximate onca use cases with mixed common-law negligence and negligen Ice peronseto issues.be an appropriate one for that this Is the only correct method, merely that itis a correct method of The court does not hold jury charge. Sneperdize Narrow by this Headnote Torts >. > Broof> Violations of Law > Torts >. > > Soscral Care > Goneral Qvarnew HNGE 5. An b) clearly states @ standard different than that of ordinary care. The driver is to take necessary Precautions for persons or carrying a white cane to avoid injuring ther mM at Or near a Crosswalk guided or by a support dog Creates a special duty to a specific cla: SS Of parsons at a specific place. As intersecti on. This such, the Court of Appeals of Texas , Second District, believe that this statute creates 8 duty of care other than the common-law ordinary care rule. fi Torts > > Proot > violations of Law > Genra! Overview Tors > > Stancards of Care > Soecial Care > ANZ® Tex. nn. art, 67 tare standard. Specifically, it requires the driver to Creates @ cuty of care other than the ordinary do something (sound the horn) and to pay extra attention to a certain class of People (obviously confused or incapacita ted persons). ‘Shaparclze - Narrow by tis Hepsnote (Civil Procedure > Appeals > Standards of Review > General Overnew HNBE In determining a no evidence paint, the courts are to consider only the evidence inferences which tend to support the finding ig of the jury and disregard all evidence and and inferences to the contrary. If there is any evidence of probat tive force to support the finding of the jury, the point must be overruted and the finding uphet a = Narrow, Evidence > admussipuity > Procedural Matters > Rulings on Evidence HNBE A “no evidence" Point of error must and may only be sustained when the record discloses ‘ne of the following: (2: .) a complete absence of evidence of a vital fact; (2) the court is barred by rutes of law or evidence from giving weight to the only evidence offer red to prove a vital fact; (3) the evidence offered to prove a vital fact is no the evidence establishes conclusively the opposite mare than a mere sci intilla of evidence; ar (4) of a vital fact. ‘Shepargize Meadnote - Naerow by this Evidence > Admissibiity > Procedural Matters > Rulings on Evidence HNLO® An assertion that the evident ce is insufficient to support a finding of fact can mean that the evidence suy the finding is so weak ar the e overwhelming that the finding should be set aside and a ewncetrialto the contrary is so ordered. The courts are Fequired to consider alll of the evidence in the case in maki ing this determination. Shepardize- Narrow by this Heagnote Torts > Remedi > Ramaneses > Gen Wwervi HNLAZ Texas adheres to the reasonable probability rule for future damages for personal injuries. Further, it is true that precise evidence is not t required and that the matter one for the jury to determine. in - Is primarily jn hittps://advance.lexis.com/GoToContentView?requestid=60948 f6e-e3 05-5021-743e-c24e. 11/12/2013 11/13/2013Neonu 02:17:02 PM 59! 3-755-1451 Page 4/5 y ve DiaUITy, 6/2 0. W.L0 Page 3 of5 Contracts bas BB 2erconat Proneny { tatture Sewentspars > sh i 5 | [© respondeat super... TReortaz =| Tere §contums od Ke Torts > > Sonera! oversaw | * Crooks v, M2 Rea... Torts a > .. > Taos Nas of ligencAcuons e > acy m > General Overview verview > Ownersni "shopandtze@ | Tools ‘About this Document ig _~ BRX2SC7 dog 1s personal property WHOSE ownership Te 1p w TeCogNCE UNE RRETW-ng FT OMNES soc] fim] dog may recover forit its wrongful injury or kil Counsel: Jeart Walker, Fort Worth, Texas, Attomey for Appellant, Wells, Williford & Felber, Revis.Purcell, Fort Worth, Texas, Attorneys for Appellee. Judges: Weaver, C.J., Spurlork JI and Keltner, 29. Opinion by: WEAVER Opinion [736] This ts a tort cause of a ction, Appellee, James Bradley, injuries sustained in a traffic a ccident in Tarrant County, Texas, sued appetiant, Dennis Caskey, for found each of the parties equally negi igant and awarded Brad ley on October 1, 2983, The jury 36,007.32 in prejudgment interest. Caskey appeats, alleging defects $ 72,800 damages plus $ in the charge and the Sufficiency of the evidence to support the judgment, By cross-points Bradley ‘erred in denying him compensation for future medi | expenses and alleges the trial court dog, Ozzie, the death of his seeing eye ‘We reform the judgment as to compensation for the d fog and remand Prejudgment interest but otherwise affirm. for a computation [737] of On October 1, 1983, James Bradley was walkin 19 along U.S. Highway 80 Conflicting testimony described him as elther walking along the shoulder in Tarrant County, Texas. of the road or in middle of the road. Bradley is blind and was ai intersection was located near the scen e Of the :ccompan ied by his seeing eye dog, Ozzie. an the accident. Caskey westbound direction when he hit Bradi: ley (at approximately 11:00wasp.m.), operating a motor vehicle in a Bradley and killing Ozzie, Evidence wa: 's introduced at trial that showed causing serious injury to ‘on the night of the accident. A jury for und both parties 50% negligent Br radley had been drinking accident. for proximately causing the In points of error one, two, four, and five, Caskey complains that certain constituted an invalid and erroneous dire Instructions in the charge submitted the following in the definitions ctandcomment on the evidence by the trial court. The court instructions section of the charge: ‘The law states whenever a Pedestrian is crossing or attempting to cross a public street or highway, at or near an intersection or crosswalk, guided by a dog, the driver proaching the intersec as may be necessary to avoid injurin \g Or tion of every vehicle apr or crossw: atk shalt take such precautions endangering such pedestrian, and if injury or danger can be avoided only by bring} ing his vehicle to a full stop, vehicle to a full stop. A failurtoe cor mply with this taw is negligencehe inshalt bring his itself. The law states that every driver of a vehicle shall exercise with any pedestrian upon any roadway and shall give warni due care to avoid colliding when necessary and shall exercise proper precautions upot iningobserving by sounding the hara’ obviously confused or incapacital ited persons upon a roadway. A failure any child or any to comply with this law is negiigence in itself. Caskey maintains that such instructions we ‘ere superfluous and an erroneo the weight of the evidence, Further, Caske ‘ey claims the charge deviates from us direct comment on in Texas Pattern Jury Charges. We di: isagree, the sample contained HNI% An unexcused violation ‘of a statute or ordinance constitut ifsuch statute or o es negligence as a matter of law ince was designed to prevent Injury to the Class of persons to which the injured party belongs v. fr. the present case, both instructions were based on state statutes. The first4 instructio - In on TEX. HUM.Rt NN. sec. 421,007 (Wernan Supp. 1989) (old TEX. REV.n was ba: sed eae? 1977). Violations of bothcondstatutes was based on (Vernon 1977)). The sex een V. CIV, STAT. ANI were pleaded by Bradley, HINNZ® Section 121.007 of the Human Resources Code reads in part: {b} The driver of a vehicle a PProaching an intersection or crosswalk where a pedestrian guided by a sup, port dor 9 OF to cross shall take necessary preca jutlonsCarrying a white cane is crossing or attempting to avoid injuring ar endangering the pedestrian. The driver shall brin 19 the vehicle to a full stop if injury or danger can be avoided only by that action. 7b). It is undig puted that Brak dley ts blind and was guided rote: Bradiey in the class of pe ersons intended to bs the statute. Thus, a violation of Section 121.007(b) would be negligence as a matter of law, HN3E Section 79 of article 6701d reads: Sec. 79, Notwithstanding other pro ‘exercise due care to avoid colicin, ig visions of this Articte every with any pedestrian upan anydriverroadway of a vehicle shall give warning by sounding the hom when necessar and shall y Precaution upon observing an: 'y child or any obviouslyandconfuseshall exercise proper person upon a roadway. d or incapacitated https://advance.lexis.com/GoToContent View?requestid=60948 f6e-e305-5¢21 -743e-c24e.. 11/12/2013 11/13/2013Wee 02:17:02 PM AGA) Pa eo 713-755-1451 Page 5/5 Page> ot > : : sfawever sam nl na ep IC. rallukaseiadinat.ne wanes embaldenaidiacaad at ti ire ade be I it CONESIAVET M1 Rea... iC. cortez | Terms & Conamons on the shoulder of the road. Other witnesses testified t hat they saw Bradley in a lane walking aa Cegt WHC Rad? GbtsOhl cthee also testified that he mar naged ta avoid hitting Mr, Bradley by Shepardize® Tools About this Document, ‘swerving and applying his brakes. Based on this testimony 'y We believe that, evidence that both parties were negligent. Bradley's own testimon) SSNAidaice pon). ase] Giumpw. vd We Tind that testimony, and the rest of the evidence presented, suficient €0 ‘SUppOFT a jury Finding of equal negligence of both parties. Caskey's sixth and seventh points of err ror are, therefore, overtuled. By way of cross-points, Bradley claims that the tri judge erred in failing to award him future medical expenses and compensation for the loss of the dog, The trial court found No evidence to support the jury's finding of $ 2,500 for future medical expenses andthat$ there was 2,500 for the value of the dog, Ozzie. We uphold the trial court's judgment as to the future medical expenses but reverse as to the value of the dog. Bradley correctly asserts that HNL® Texas adheres to the “reasonable probability" rule for future herr v. 1981, writ red n.r.e.). Further, it is true that precise evidence is not required(Tex.App. -- Amaritio damages for personal injuries, See isprimarily one for the @ jury to determine. [740] Id.; Giadewater Municios! Hosp. and that the matter v. Daniel, 694 (Tex.App. -- Texarkana 1985, no writ). Gladewater Muri ucipa! Hosp. cases there were testimonies However, in both the Hughett and from doctors of dollar figures far future medical expenses. In the present case there is no such testimony. Bradley should see him in the future if necessary. Bradley had not The doctor testified that seen the doctor for a period of ‘over two years before the trial, Bradley testi ified that he had aches in his legs and that he believed the pain to be getting worse, but that he had not seen the doctor because the doctor told him that the pain would be like this from now on. Nowhere was there any evidence that any sort of medical care would be required in the future. Based on this evidence we believe the trial court was correct in denying the Future medical expenses on no evidence grounds. However, we find the trial court erred In denying recovery for the dag. HNI2% Ad 0g Ispersonal Property whose ownership is recognized under the law. Arrin v. Arrington, 568 (Tex.Civ.App. -- Fort Worth 1981, no writ), An owner of @ dog may recover for its wrongful injury or killing. City of Gariand v. White, 368 5.W.2d 12, 16 (Tex.Civ.App. reFd n.r.e.). Caskey maintains that there was no evidence that Bradley owne: d Eastland 1963, writ the dog, and thus could not recover for its injury. We disagree. Bradley testified that the dog was a gift from Guide Dogs for the Blind. He further testified that the dog was his to use until the do 1g died or had to be destroyed. We are aware of no title requirement under Texas taw for ownership of dogs. Bradley stated he had accident. We believe this provides some evidence that Bradley the dog for ten months prior to the owned the dog and thus was entitled to recover for it. We sustain Bradley's second cross-point. Therefore, we modify the judgment to include an additional $ 1,250 for 2,500 vaiue of the dog as determined by the jury). We remand this causeBradley (one-half of the $ to the trial court far ‘computation of prejudgment interest on the additional $ 1,250 in damages awarded to Bradley. writ of enor), TEX REV CV STAT ate art, 5069-1.05 ‘ver 10n2X. Supp. (per curiam) {opinion on 1989), Otherwise, we affirm the decision of the trial court. _ GB" Leisexis® | snout vexstons | pvacy Poiey | Terms & Condhions | Copyigne € 2038 Lexishens. https://advance.lexis.com/GoToContent View?requestid=60948f6e-e305-5c2 1-743e-c24e... 11/12/2013